Justice Department tells Supreme Court that Guantanamo detainee can testify about torture at CIA site

Washington — A Guantanamo Bay detainee working to learn more about his torture at an alleged CIA "black site" can testify to authorities in Poland about his treatment, the Biden administration told the Supreme Court last week. 

After fielding questions from several of the justices during this month's oral arguments in the case of Abu Zubaydah about whether he could answer questions about his treatment, acting Solicitor General Brian Fletcher said in a letter to the court Friday that the government would allow Zubaydah to send a declaration to authorities in Poland that could include details about his torture by the CIA. 

Polish prosecutors are investigating Zubaydah's torture at a detention facility operated by the CIA in the early 2000s. While it has been widely reported that the CIA operated a so-called "black site" in Poland, the U.S. has sought to shield the identities of foreign intelligence partners and the location of detention facilities in their countries.

Fletcher told the high court that although the U.S. declined Polish prosecutors' request to facilitate Zubaydah's testimony in 2015, and the "nonlegal mail process" available to the detainee is limited to communications with family, the Defense Department "has informed this Office that under the circumstances presented here it would allow Abu Zubaydah, upon his request, to use such a process to send a declaration that could be transmitted to Polish prosecutors."

The Justice Department said Zubaydah's declaration would be subject to a security review. That review "would not prevent him from describing his treatment while in CIA custody, but it could result in the redaction of information that could prejudice the security of the United States," Fletcher wrote.

Zubaydah's testimony would not resolve the dispute over whether the U.S. could assert the state-secrets privilege to block two CIA former contractors from testifying about the detainee's treatment, Fletcher warned, which is the central question in the case before the court.

Zubaydah, the first detainee who was subject to the CIA's so-called "enhanced interrogation" program after the September 11 attacks, is seeking testimony from the ex-CIA contractors about whether the agency operated a detention facility in Poland in the early 2000s, as well as to the details of his treatment. The contractors, James Mitchell and Bruce Jessen, designed the CIA's enhanced interrogation program, which has been widely denounced as having led to the torture of terror suspects.

After Zubaydah and his attorney, Joseph Margulies, sought a federal court order allowing them to subpoena the contractors, the U.S. blocked their testimony by asserting the state-secrets privilege.

The CIA has declassified a substantial amount of information regarding its enhanced interrogation program, including details about Zubaydah's treatment while in CIA custody. His lawyers also argue information about his torture and detainment at various CIA sites, including the facility in Poland from December 2002 to September 2003, is well known, as the former president of Poland who was in office during Zubaydah's detainment confirmed the CIA operated a facility in the country.

Captured in Pakistan nearly two decades ago, the Justice Department said Zubaydah is an associate and longtime ally of Osama bin Laden. He was held in detention facilities abroad before being transferred to Guantanamo Bay, Cuba, in 2006.

According to the 2014 public report from the Senate Intelligence Committee on the CIA's torture program, Zubaydah was waterboarded at least 83 times and spent more than 11 days in a "coffin confinement box." 

The prospect of Zubaydah testifying about his treatment was raised during oral arguments earlier this month in the legal battle over his efforts to secure the contractors' testimony. As arguments neared the end, several of the justices pressed Fletcher on the possibility Zubaydah answer questions about his torture.

"Why not make the witness available?" Justice Neil Gorsuch asked Fletcher. "What is the government's objection to the witness testifying to his own treatment and not requiring any admission from the government of any kind?"

The case, Gorsuch said, "has been litigated for years and all the way up to the United States Supreme Court, and you haven't considered whether that's an off-ramp that the government could provide that would obviate the need for any of this?"

Justice Sonia Sotomayor told Fletcher the court wants a "clear answer, are you going to permit him to testify as to what happened to him those dates without invoking a state secret or other privilege? Yes or no? That's all we're looking for."

Fletcher told Gorsuch that all communications by Zubaydah are subject to security screening, but would provide an answer to the high court.